3nd exam conflicts final

7/23/2019 3nd Exam Conflicts Final

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CONFLICT OF LAWS

Chapter XVIII

PATERNITY and FILIATION, ADOPTION,GUARDIANSHIP, and FUNERALS

PATERNITY & FILIATION

Definitions

1. Paternity – civil status of the father with respect to the

child begotten by him

2. Filiation – status of the child in relation to the parent3. Paternal affection – love of the parents for the child

4. Filial affection – love of the child for the parents

Include the following

1. Parental authority

2. Reciprocal Support

3. Recognition

4. Rights and obligations of parents and children

Legiti!acy

s ordinarily understood! it means the status ac"uired by a

person who is born in lawful wedloc# to parents who aremarried to each other at the time of his birth.

I!"ortance of Deter!ining Legiti!acy

$nder practically all systems of the world! legitimatechildren have rights superior to those of illegitimate

children! particularly with respect to inheritance

Legiti!acy under Phili""ine Law

$nder our conflicts rule e%pressed in rt. 1& of the 'ivil

'ode! the (ational )aw of the *+,-R determines the

"uestion of legitimacy of the child status/.

# 'onsidering the rule that matters of procedure are

ordinarily governed by the internal law obtaining in the

forum! why are presumptions of legitimacy governed by thenational law of the father rather then by the lex fori?A0 n 'onflict of )aws! presumptions of legitimacy are not

mere rules of evidence! they are rules of substantive law

# hat is the "uestion in Private nternational )awA +he "uestion is not whether or (+ a person was born

in lawful wedloc# 5$+ which system of municipal law is

to provide the test of legitimacy. +o specify what system of

law shall decide whether or not a given person is bornlegitimate.

Paternity & Filiation

$te"s to %e Taen in 'haracteri(ation

1. 6etermine whether or not the child is legitimate

2. 6etermine what law governs the relationship between

parent and child

Legiti!ation

+he remedy or process by means of which those who were

not in fact born in wedloc#! and should therefore beconsidered illegitimate! are! by fiction and upon compliance

with certain re"uirements regarded by law as legitimate

# hat law will determine whether a child is legitimate or notA +he (+() ) of the *ather of the child

Doctrine of I!!uta%ility of $tatus

)egitimacy! once created under the personal law of the

parent! either by birth of the child by legitimation! is a

permanent status. +herefore! change of parent7s nationality

does (+ affect status of the child as legitimate.

)owe*er

+he rights and duties flowing as incidents from the status of legitimacy may be modified by a change of the personal law

deemed to be decisive of the child7s status

n short! the child7s legitimacy is immutable! but the incidents

of his status are not.

Effect of 'hange in Nationality in Relation to Doctrine of I!!uta%ility

1. Pro"erty Relations + ( change

2. Personal Relations + 'hanges

3. $tatus of the 'hild + ( change

4. Relationshi" %etween Parents and 'hildren ,

'hanges

$yno"sis of the Pertinent 'onflict Rules

Factual $ituation

Point of 'ontract

PATERNITY and

FILIATION

If the child is

- Legiti!ate + NATIONAL LA.

of the Father

/ Illegiti!ate

- If Recogni(ed %y Father +

National Law of Father

/ If NOT Recogni(ed %y

Father + National Law of

0other

ADOPTION

Definition

Ado"tion + the process of ma#ing a child! whether related or not to the adopter! possess in general the rights accorded to a

legitimate child

Issues in 'onflict of Laws with res"ect to Ado"tion relate

to se*eral !atters

First + the particular court7s 8urisdiction to grant

adoption $econd + the capacity of aliens to adopt

Third + the effect or conse"uences of adoption in theforum and in other states

E1a!"le

Roger merican businessman! domiciled in 'alifornia/!

marries 9aria *ilipina widow nurse in 'alifornia/ in the

$S. fter 3 years of marriage! they ta#e a long vacation inthe Philippines. Roger and 9aria decide to adopt ndy! : year

old son of 9aria. +hey file a petition for ndy7s adoption with

the R+' of 9a#ati

# Does the RT' 0aati ha*e 2urisdiction to grant the

"etition for ado"tion3

A ;es

# .hat law will it a""ly3

A Philippine law on adoptio(

4asic Princi"les on ADOPTION

-5 'a"acity to ado"t + determined by the (+() )

of the 6P+-R

a. ,e must not be dis"ualified to adopt in his own

country

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa -



CONFLICT OF LAWS

b. 5ut it does not necessarily follow that if he is

capacitated to adopt in his country! he is automaticallycapacitated to adopt in RP

/5 $tatus 'reated %y Ado"tion + determined by the

(+() ) of the 6P+-R So! if one is considered adopted in the

country of the adopter! he is considered adopted inRP

65 Ado"tion does not confer Fili"ino citi(enshi"

'an ALIEN$ Ado"t in RP3

Art5 -789 Fa!ily 'ode

:old law;

RA 7<<6 :new law;

=eneral

Rule

Aliens 'ANNOT

ado"t in RP

Aliens 'ANNOT ado"t

in RP

E1ce"tio

ns

- FOR0ER

FILIPINO'ITI>EN who

wants to ado"t a

relati*e %y

'ON$AN=?ITY

- FOR0ER

FILIPINO'ITI>EN who

wants to ado"t a

relati*e %y

'ON$AN=?INITY

or AFFINITY

within the 8th ci*il

degree

Art5 -789 Fa!ily 'ode

:old law;

RA 7<<6 :new law;

E1ce"tions

6 One who is0ARRIED to a

Fili"ino and sees

to @OINTLY

ADOPT a relati*e

%y

'ON$AN=?ITY

of the Fili"ino

s"ouse

6 One who is0ARRIED to a

Fili"ino and sees

to @OINTLY

ADOPT a relati*e

%y

'ON$AN=?ITY

or AFFINITY

within the 8th ci*il

degree of the

Fili"ino s"ouse

Art5

-789 F'

RA 7<<6 :new law;

E1ce"tion 8 E*en if the Aliens has NO

Relati*e in the RP9 he !ay ado"t

if

- )e is resident of the RP for 6

continuous years PRIOR to

filing of "etition for

ado"tion

/ )e !aintains his residence

in RP until the decree of

ado"tion is entered into

Art5 -789 Fa!ily

'ode

RA 7<<6 :new law;

E1ce"tio

n

6 )e !ust ha*e legal

ca"acity to ado"t

under the laws if

his own country

8 )is 'ountry allows

the ado"ted child

to enter

Note ery Restricti*e +

Essence of

Ado"tion is ONLY

Binshi"

Less Restricti*e + Residency

is now taen into

consideration

Ado"tion %y )us%and and .ife :Art5 -7< Fa!ily 'ode;

-5 =eneral Rule + , and must <(+); adopt5

/5 E1ce"tions + here one spouses see#s to adopt0a. ,is own illegitimate child! or

b. +he legitimate child of the other spouse

'an a Fili"ino Ado"t an Alien in RP3

-5 ?nder the Art5 -7C of the FA0ILY 'ODE + an alien of a

country whose government has no relations with the RP

'((+ be adopted

/5 RA 7<</ + Removed the dis"ualifications under the *amily

'ode

65 Therefore liens 9; be adopted by a *ilipino in RP"ro*ided

a5 +he adoptee is below 1= years old unless

the *ilipino adopter has always treated him as his

own child/ b. +he adoptee is 8udicially or administratively

declared available for adoption

85 n RP! adoption by a *ilipino does (+ confer citi>enship

on an adopted alien child

Inter,'ountry Ado"tion

-5 Features

a5 +he alien or *ilipino is permanently residing

abroad

b. +he petition is filed abroadc. supervised trial custody is underta#en abroad

d. +he decree of adoption is issued abroad

/5 @udicial "artici"ation is NOT reuired

$yno"sis of the Pertinent 'onflict Rules

Factual $ituation

Point of 'ontact

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa /



CONFLICT OF LAWS

ADOPTION + including

-5 'reation of the status of

ado"tion9 and

/5 Rights and O%ligations of

ado"ter and ado"ted

NATIONAL Law of the

ADOPTER

=?ARDIAN$)IP

Factual

$ituation

Point of 'ontract

- O*er the

PER$ON of

the .ard

A""ointing

'ourt

'ourt of DO0I'ILE of

.ARD

Powers of

=uardian

'oe1tensi*e with those

of a""ointing court :law

of the a""ointing state;

:no e1tra,territoriala""lication;

Factual $ituation Point of 'ontract

/ O*er the

PROPERTY of

the .ard

A""ointing

'ourt

'ourt where the

PROPERTY is

FO?ND :LE REI

$ITAE;

Powers of

=uardian

'oe1tensi*e with

those of a""ointing

court :law of the

a""ointing state; :noe1tra,territorial

a""lication;


6 O*er the PER$ON

& PROPERTY of

the .ard

A""ointing

'ourt

'ourt of

DO0I'ILE of

.ARD

Powers of

=uardian

'oe1tensi*e with

those of a""ointing

court :law of the

a""ointing state;

F?NERAL$

:incidents thereof;

.here the 4ODY is 4?RIED

'onflicts Rules on Ado"tion

1. ?( the status of adoption has been created! depends on

the national law of the adopter

2. f the adoption ta#es place in the RP! our country7s

procedural re"uisites must be complied within accordance

with the theory of le% fori on procedural matters

3. +he rights and obligations of the adopter and the adopted

are governed by the national law of the adopter

REAL AND PER$ONAL PROPERTIE$

- =eneral Rule + ssues concerning real property shall

be

governed by the law of the place where the property issituated [lex rei sitae]

/ E1ce"tions

- R6-R * S$''-SS() R@,+S – (+() ) of the 6-'-6-(+ rt. 1AB2C

'ivil 'ode/

/ 'P'+; to S$''--6 in inheritance cases –

(+() ) of the 6-'-6-(+ rt. 1D3E'ivil 'ode/

/ E1ce"tions9 contG

6 'ontracts involving R-) property but which do

(+ deal with the ++)- thereto F the proper law of

the contract which is either the0

1 Lex loci voluntatis – the law of the place

voluntarily agreed upon

2 Lex loci intentionis – the law of the place

intended by the parties

8 'ontracts where the R-) property is given asS-'$R+; such as loan with mortgage/

1 +he principal contract loan/ – the proper law of

the contract [lex loci voluntatis or lexl loci

intentionis]! and

2 +he accessory contract mortgage/ – lex rei sitae

Real Pro"erty Issues

.hat are =o*erned %y Le1 Rei $itae

1. -%trinsic Galidity of lienations

2. ntrinsic Galidity of lienations

3. +ransfers including sale! barter! e%change/

4. 9ortgage&. 'apacity of Parties

A. nterpretation of 6ocuments

:. -ffects of wnership

=. 'o – wnershipE. Possession including adverse/

1D. ccession

11. $sufruct

12. )ease13. -asement

14. Police Power

1&. -minent 6omain1A. +a%ation1:. Huieting of +itle

1=. Registration

1E. Prescription

Issues that !ay %e deter!ined %y the lex situs:

1. ho may own real property

2. $nder what conditions may the land be held3. $nder what uses may the land be put

4.ho has the capacity to transfer interest in or to convey

property

E1a!"le:

9aria! a *)P( married woman! e%ecutes a promissory

note in ,ong#ong! giving as security for it a mortgage on land

in the RP.$nder RP law 9aria has no power to ma#e the conveyance

without the consent of her husband.

#: 'an the mortgage be enforced in the RP

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa 6



CONFLICT OF LAWS

A: N o! although she may have the capacity to e%ecute the

P( in ,I. 5ecause this issue is governed by the lex rei sitae

)owe*er lthough the mortgage is unenforceable in the

RP! the P( may be a valid personal obligation if sanctioned by the proper law of the contract ,I/

$yno"sis of 'onflicts Rules

Factual $ituation Point of 'ontact

=eneral Rule ,

Anything in*ol*ing

"ro"erty

Lex Rei Sitae

E1ce"tions

- $uccessional rights National Law of Decedent HArt5

-:-; 'i*il 'odeJ

/ 'a"acity to succeed National Law of Decedent HArt5

-K69 'i*il 'odeJ

6 'ontracts in*ol*ing

real "ro"erty %ut do

not deal with title

thereto

The Pro"er Law of the 'ontract

:lex loci voluntatis or lex loci

intentionis]

8 'ontracts where real

"ro"erty is gi*en as

security

Princi"al

'ontract

Lex loci voluntatis

or lex loci

intentionis]

Accessory

'ontract

Lex rei sitae

0OA4LE PROPERTY

0o*a%le Pro"erty is of two :/; inds

-5 'hoses in "ossession + usually identified with tangible

ob8ects things that can be seen and touched//5 'hoses in action + are rights! legal titles or claims to

something such as debts! patents! copyright! goodwill!

trademar#s and shares of stoc#/! subdivided into choses in

action0a5 that are mere rights + such as the right to

collect from a debtor! or %5 choses in action represented by document

'hose

thing! an article or property! a thing that can be seen andtouched

Rule with Res"ect to 'hoses in Possession

-5 =eneral Rule , the law of the State in which the

property is located at the time of the transaction in "uestion

lex rei sitae Brt. 1A1/! 'ivil 'odeC/ determines the

creation and transfer of interests in choses in possessionsame as the rule in real property/

/5 E1ce"tions + same as those for real property e%cept that

in the e%ample concerning the mortgage the same must bechanged to a pledge of personal property

E1a!"le

=eneral Rule + a *ilipino/ buys a watch while strollingalong the streets of @eneva5

# hat law will govern the sale of the watch to JA+he sale of the watch will be sub8ect to the laws of Swit>erland

Effect

J a *ilipino/ will have the rights conferred by Swiss law to

the owner of movable property pursuant to sale thereof to him

Reason 'ommerce depends on the protection of the

purchaser who must buy without investigation of the

applicable law! at least not beyond where the goods arelocated! which is usually the place of transaction! as well.

# re there instances where the lex situs will not be appliedA ;es! where the transaction loo#s toward future delivery and

the location of the chattel bears no significant relationship to

the transaction until delivery F this may call for the application

of Kthe proper law of the transactionL which is K the law most

significantly related to the issue presented”

E1a!"le :$hanahan *5 Landers;

P! in (ew ,ampshire agreed to buy a power trench hoe fromS. +he contract of conditional sale was e%ecuted in

9assachusetts. +he hoe was delivered to P in Germont where

it was used on a single 8ob.

)ater! P brought the hoe to (ew ,ampshire where it was usedfurther.

9eanwhile! S assigned P7s contract and promissory notes to *!a financing company.

hen P failed to ma#e his payments! * repossessed the hoe in

(ew ,ampshire.

* too# the hoe to 9assachusetts where it was resold to 5.

+he case was filed in 9assachusetts$itus of the sale0 9assachusetts

?nder 0assachusetts law +he resale is lawful

?nder New )a!"shire law +he resale is unlawful because a

1DFday notice of resale must have been given to P by *! failing

to do so is tantamount to conversion

Issue hat law will govern the validity of the resale of the

hoe from * to 5

)eld +he law of (ew ,ampshire will govern the validity of the resale of the hoe from * to 5.

Reason t was selected due to its substantial connection withthe transaction! as it was01. +he place where the buyer signed the contract of resale

2. +he place of business of the buyer

3. +he place where the hoe was #ept

4. +he place where the alleged conversion too# place in amanner contrary to that State7s law

Another instance where the le1 situs !ay %e disregarded

hen the goods are in transit

$yno"sis of 'onflicts Rules on Tangi%le Pro"erty

Tangi%le Personal Pro"erty :'hoses in Possession;

Factual $ituation

Point of 'ontact

- 0eans of trans"ortation

1 SeaFgoing Gessels

1 +ransaction such as

sale or mortgage of the

vessel/ while in thehigh seas

+he law of the *)@ Bor

in some cases! the law of

the P)'- of R-@S+R;C




CONFLICT OF LAWS

2 f the vessel is doc#edin a foreign port

+he law of said port as itis usually regarded as a

temporary lex situs

2 ther means of transport

such as railway trains!motor cars! aircraft/

+he law of the state of

6-P+ Bstorage placefor suppliesC or

R-S+(@ P)'-

/ =oods in Transitu Bthese things have a changing status because they moveC


1 )oss! destruction!

deterioration of goods intransitu

+he law of the state of

6-S+(+( Brt. 1:&3'ivil 'odeC

1 f the destination is

changed

+he law of the state of (-

destination

2 f the goods were

never shipped

+he law of the place of the

actual situs

2 Galidity and effect of

sei>ure of goods

+he locus regit actum Blaw

of the place where goods

were sei>edC

3 6isposition or alienation

of the goods

+he lex loci voluntatis or

lex loci intentionis

'hoses in Possession

Rules in International Air Trans"ortation

-5 Da!age to or Delay in the arri*al of goods + arsawconvention

/5 #uestions on 2urisdiction + arsaw 'onvention but

procedural matters are governed by the lex fori]

65 Prescri"ti*e "eriod for filing a case + arsawconvention but method of calculating period of limitation

is governed by the lex fori]

Note

Some authors say the "uestions arising from transactions

involving movables in transit may be resolved by referring

to the law of any place having a substantial connection withthe transaction which would uphold its validity the owner of the goods is permitted to choose between several legal

systems


- De%ts or si!"le rights of

action arising fro!

contracts

- Reco*ery of de%ts or

in*oluntary

assign!ent of de%ts

Hgarnish!entJ

The law of state where

DE4TOR or =ARNI$)EE

!ay %e effecti*ely

$ERED with $?00ON$

Husually the do!icileJ

/ oluntary assign!ent

of de%ts

Lex loci voluntatis or lex

loci intentionis H"ro"er law

of the contractJ

6 Ta1ation of de%ts The law of the state of

do!icile of creditor

8 Ad!inistration of Lex situs of assets of the

de%ts de%tor Hfor these assets can

%e held lia%le for the

"ay!ent of the de%ts


/ Negotia%le Instru!ents

- Negotia%ility or non,

negotia%ility of an

instru!ent H%ill of

e1change9 for

e1a!"leJ

The law of the state that ga*e

rise to the right e!%odied in

the instru!ent Hfor e1a!"le9

in the case of a $wiss %ill of

e1change9 $wiss law

deter!ines its negotia%ilityJ

/ alidity of transfer9

deli*ery or

negotiation of the

instru!ent

In general9 lex situs of the

IN$TR?0ENT at the ti!e of

transfer9 deli*ery or

negotiation


6 $hares of $toc

- Effect on a

cor"oration of the

sale of cor"orate

shares

Law of the state of

IN'ORPORATION :to %ind

the cor"oration9 the transfer

!ust %e recorded in its %oos;

/ Effects %etween the

"arties of the sale

of cor"orate share

Lex loci voluntatis or lex loci

intentionis H"ro"er law of the

contractJ + for this is really a

contract usually9 this is the

"lace where the certificate is

deli*ered

6 Ta1ation on the

di*idends of

cor"orate shares

Law of the state of

IN'ORPORATION

8 Ta1ation on the

inco!e fro! the

sale of cor"orate

shares

Law of the state where the sale

was 'ON$?00ATED


4 Franchises )aw of the state that @R(+-6

them

& =oodwill of a %usiness

and ta1ation thereon

)aw of the state where the

5$S(-SS is carried on

A Patents9 co"yrights9

trade!ars9 trade

na!es

n the absence of a treaty! they

are PR+-'+-6 (); by theS++- that @R(+-6 them

(+-0 *oreigners may sue for

infringement of trade mar#s and

trade names in the Philippinesonly if *ilipinos are granted

reciprocal concession in the state

of the foreigners rt. 3 of the

P)/

Rules of $itus

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa <



CONFLICT OF LAWS

Factual $ituation $itus E1a!"le

- Negotia%le Instru!ents

- O%ligations of the

!aer of the note

and acce"tor of

the draft

The state

designated in the

instru!ent as the

"lace of "ay!ent

/ In the a%sence of

the designated

"lace

The state where

the instru!ent

was deli*ered


- Negotia%le

Instru!ents

6 Issue at to

whether or not

the instru!ent

is negotia%le

The state that

gi*es rise to the

rights

e!%odied in

the instru!ent

Negotia%ility of a

Phili""ine draft is

deter!ined %y

Phili""ine law

8 Issue as to

whether or not

the instru!ent

has %een legally

transferred or

deli*ered

The state of the

instru!ent at

the ti!e of

transfer9

deli*ery or

negotiation

.hen a Fili"ino

negotiates a PN4

chec to another

Fili"ino enroute to

'anada9 while on a

sto"o*er at Toyo

+ su%2ect to

*alidity of the

negotiation of the

instru!ent to@a"anese law


/ 'hecs

- Issue as to

whether or not

the o%ligation has

%een

consu!!ated

The state of

deli*ery :Li!

*5 'A9 /<-

$'RA 8K7;

Negotia%ility of a

Phili""ine draft

is deter!ined %y

Phili""ine law

6 De%ts

- If the de%t has

%een created %y

contract

The state

sti"ulated in

the contract

/ If 2udicial action

is to %e taen on

the de%t

The state

where the

de%tor !ay %e

effecti*ely

ser*ed with

su!!ons


8 $hares of $toc

- The relation

%etween the

shareholder

and the

cor"oration

The state of

incor"oration

/ The rights of

assignor and

assignee of

share of stoc

The state with the

!ost significant

relationshi" to the

transaction to

control

6 For "ur"oses of

attach!ent

The state where the

President or!anaging agent of

the cor"oration is

:Rule <C $ec5 CJ

.ILL$9 $?''E$$ION9 AND AD0INI$TRATION

.ills and $uccession

'onflicts Rules on Intrinsic alidity

Art5 -:/; 'i*il 'ode – ntestate and testamentary

successions! both will respect to the order of succession and tothe amount of successional rights and to the intrinsic validity

of testamentary provisions! shall be regulated by the

(+() ) of the P-RS( ,S- S$''-SS( is

$(6-R '(S6-R+(! whatever may be the nature of the property and regardless of the country wherein said

property may be found. B1DaC

Art5 -K69 'i*il 'ode + 'apacity to succeed is governed bythe ) of the (+( of the 6-'-6-(+. BnC

Intrinsic alidity 'o*ers

- ?nder Art5 -H/J9 'i*il 'ode

-

rder of succession0

/ mount of successional rights

6 ntrinsic Galidity of provisions of the will

/ ?nder Art5 -K69 'i*il 'ode , 'apacity of heir to

succeed


ntrinsic Galidityof a ill

(+() ) of the +-S++R or 6-'-6-(+

'ases

1. -state of 5ohanan v. 5ohanan <an 3D! 1EAD/

2. 5ellis v. 5ellis <un A! 1E:A/

3. >nar v. @arcua <an. 31! 1E:3/

ETRIN$I' or FOR0AL ALIDITY

1. *orm of the ill

2. ge of +estator

3. (umber of itnesses4. 'apacity of +-S++R to 9I- a ill

'onflicts Rule on For!al alidity

Art5 -C9 'i*il 'ode + +he forms and solemnities of contracts!wills and other public instruments shall be governed by the

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa



CONFLICT OF LAWS

laws of the country in which they are e%ecuted [Lex Loci

Celebracionis]

Rules on E1trinsic alidity

Factual

$ituation

Produces Effect in the

RP if E1ecuted in

Accordance with

'onflicts Rule

1 will made5R6 by

a *)P(

1 Lex LociCelebracionis law

of the country

where the will was

e%ecuted/! or

rt. =1& – hen a*ilipino is a foreign

country! he is

authori>ed to ma#e

a will in any of theforms established

by the law of the

country in which

he may be. Suchwill may be

probated in the

Philippines

2 ,is (+()

)aw

Factual

$ituation

Produces Effect in RP

if E1ecuted in

Accordance with

'onflicts Rule

2 will made

5R6 by

an )-(

1 Lex Loci

Celebracionis

law of thecountry where the

will was

e%ecuted/! or

rt. =1A – +he will

of an alien who is

abroad produceseffect in the

Philippines if made

with the formalities

prescribed by thelaw of the place in

which he resides! or

according to the

formalities observedin his country! or in

conformity with

those which this

'ode prescribes BnC.

2 +he law of his69')-! or

3 ,is (+()

law!or

4 Philippine )aw

Factual

$ituation

Produces Effect in

the RP if E1ecuted

in Accordance with

'onflicts Rule

3 will made in

the Philippines by an )-(

1 ,is (+()

)aw

rt. =1: – will

made in thePhilippines by a

citi>en or sub8ect of

another country!

which is e%ecuted inaccordance with the

law of the country of

which he is citi>en

or sub8ect! andwhich might be

proved and allowed

by the law of his

own country! shallhave the same effect

as if e%ecuted

according to the laws

of the Philippines.BnC

/ Philippine )aw

PRO4ATE of .ILL$

Pro%ate

+he proof of establishing! before the appropriate tribunal! that

the document is the valid last will and testament of thedeceased! as well as the certification of such court that the will

was e%ecuted by a competent testator in the manner prescribed

by law.

The "ro%ate of a will is conclusi*e

1/ as to its due e%ecution! and

2/ as to the testamentary capacity of the testator

5$+ does (+ affect the intrinsic validity of the provisions

of the will.

E1trinsic or For!al alidity of .ills

Rule on .ills Pro%ated in a Foreign 'ountry Rule !ec" #" $ill %roved &utside the %hilippines may be

'llowed (ere ) ills proved and allowed in a foreign country!according to the laws of such country! may be allowed! filed!

and recorded by the proper 'ourt of *irst nstance R+'/ in

the Philippines

Rule on .ills Pro%ated in a Foreign 'ountry9 contG

Rule !ec" *" Notice of hearing for allowance F hen a copy

of such will and of the order or decree of the allowance

thereof! both duly authenticated! are filed with a petition for allowance in the Philippines! by the e%ecutor or other person

interested! in the court having 8urisdiction! such court shall fi%

a time and place for the hearing! and cause notice thereof to be

given as in case of an original will presented for allowance.


Rule on .ills Pro%ated in a Foreign 'ountry

Rule !ec" +" $hen will allowed, and effect thereof ) f itappears at the hearing that the will should be allowed in the

Philippines! the court shall so allow it! and a certificate of its

allowance! signed by the 8udge! and attested by the seal of the

court! to which shall be attached a copy of the will! shall befiled and recorded by the cler#! and the will shall have the

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa C



CONFLICT OF LAWS

same effect as if originally proved and allowed in such

court.

Rules for .ills E1ecuted A%road

- hen a will e%ecuted abroad has not been proven

probated/ in a foreign country – it may be admitted to

regular probate in the Philippines where the following

have to be proven0

- 'ase to be filed – Petition for llowance of illto be filed in the proper R+'

/ 6ocuments to be attached to petition0

- copy of the will! and

/ +he decree of the probate thereof

6 +here will be a hearing for the allowance of wills

8

Rules for .ills E1ecuted A%road9 cont55

8 f it appears during the hearing that the will should

be allowed in the Philippines0

1 +he court shall so allow it! and

2 certificate of its allowance! to which shall be

attached a copy of the will! shall be filed and

recorded by the cler#!

3 +he will shall have the same effect as if

originally proved and allowed in such court

/ hen a will e%ecuted abroad has not been provenprobated/ in a foreign country – it may be admitted toregular probate in RP and the following have to be proven0

- 6ue e%ecution of the will

/ 'apacity of testator


.hen a will has %een "ro%ated a%road

1. +he procedure is similar to the enforcement of a foreign 8udgment

2. +herefore! the due e%ecution of the will and the

testamentary capacity of the testator need not be provenagain

The following !ust %e "ro*en when a will has %een

"ro%ated in a foreign country

1. +he foreign law with respect to the due e%ecution of willsmust be proven

2. +he procedure on probate of will must be proven

E*idence necessary for the Re"ro%ate or Allowance of a

.ill which has already %een Pro%ated in a Foreign

'ountry

1. +he due e%ecution of the will in accordance with the

foreign law2. +he testator has his domicile in the foreign country and

(+ in the RP

3. +he will has been admitted to probate in such foreigncountry

4. +he fact that the foreign tribunal is a foreign court

&. +he laws of the foreign country on the procedure and

allowance of wills Gda. 6e Pere> v. +olete/

'ases

1. n re +estate -state of Suntay E& P,) &DD/

2. Gda. 6e Pere> v. +olete 232 S'R :22/

Inter"retation of a .ill

+he process of ascertaining the meaning which the testator

intended his words to convey

E1a!"le .hen a 'onflicts Issue on Inter"retation !ay

AriseJ is a Swiss national married to a *ilipina and domiciled in5oracay. ,e died in 5oracay leaving a will! with provisions

leaving his entire property to his KheirsFinFlawL and his Kne%t

of #inL.

# )ow can our courts disco*er the intent of the 9 the

testator3

A ur courts must refer to the canons of construction laid

down by Swiss internal law [the national law of the decedent]

# .hat if all the a*aila%le e*idence of the intention of

still lea*es the issue unresol*ed3

A rt. :==! 'ivil 'ode provides that0 -.f a testamentary

disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be

operative shall be preferred”"

@oint .ill

ne e%ecuted in the same instrument by two 2/ or more

testators.

# Are 2oint wills allowed in the RP

A No5 M/wo or more persons cannot ma0e a will 1ointly, or in

the same instrument, either for their reciprocal benefit or for

the benefit of a third person"” rt. =1=! 'ivil 'ode/ and

“ 2oint wills, executed by 3ilipinos in a foreign country shall

not be valid in the %hilippines, even though authori4ed by thelaw of the country where they may have been executed” rt.

=1E/

'onflicts Rules on @oint .ills

Factual $ituation

Point of 'ontact

- 9ade by *)P(S

5R6

(+() )aw

/ 9ade by )-(S

5R6 – G)6 if

valid under0

1 Lex Loci Celebrationis –

where the 8oint will was

made

2 Law of the DOMICILE +

where the alien isdomiciled

6 9ade by )-(S in RP – G6 by reasons of

P$5)' P)';

Lex Loci Celebrationis

Re*ocation of .ills

'onflicts Rule on Re*ocation




CONFLICT OF LAWS

1. revocation done outside the Philippines! by a person

who does (+ have his domicile in this country! is validwhen it is done0

a. ccording to the law of the place where the will

was made! or

b. ccording to the law of the place in which thetestator had his domicile at the timeM

2. f the revocation ta#es place in this country – it is validwhen it is made in accordance with the provisions of this'ode Blaw of the forumC rt. =2E! 'ivil 'ode/

Defects of Art5 7/

1. +he shift from nationality to domicile as a point of contact is rather erratic

2. +he phrase Kdomicile at the timeL is not clear

3. hen an alien ma#es a will abroad! there are several

points of contract to uphold the intention of testator – incase of revocation! there only two 2/ points of contract

recogni>ed! namely0

a. +he law of the place where the will was made!

and

b. +he law of the testator domicile4. +here is no apparent provision with reference to aliens

domiciled in the RP who e%ecute the act of revocation

abroad! 5$+ a will made by an alien abroad wherever hisdomicile may be! will be considered valid in the RP if

formally valid under0

a. ,is national law

b. +he law of his domicilec. +he law of the place where it is made

d. Philippine law

'onflicts Rules on Re*ocation of .ills


- Revocation done in the RP

rt =2E/

RP )aw – )-J )' '+$S

or the place where the actrevocation/ was done

/ Revocation done

$+S6- the RP by a

((F69'))R;

rt. =2E/

- )aw of 69')- at

the time of revocation

/ )aw of the Place where

the )) was 96-

6 Revocation done

$+S6- the Philippines

by a 69'))R;Paras/

- )aw of the 69')-

RP )aw/

/ )aw of the Place of

R-G'+(

Effect of ')AN=E of NATIONALITY of TE$TATOR


- -J+R(S'validity

Lex Loci Celebrationis at the +9- the)) was -J-'$+-6 governing law

does not change with change of

nationality/

/ (+R(S'

validity

(ational law of testator at the +9- the

6-+, will govern governing lawchanges with change of nationality/

Ad!inistration of Estate Deceased

Rules on Ad!inistration

H0 hich court has the power to appoint an administrator

or declare the e%ecutor "ualified

0 t depends0

1. f the deceased was domiciled in the RP at the time

of his death – the court of the state where the deceased wasdomiciled

2. f the deceased was (+ domiciled in the RP at

the time of his death – the court of the state where his

properties are found

Rules on Ad!inistration+he rights! powers and obligations of the e%ecutor or administrator are coFe%tensive with the powers of the

"ualifying or appointing court

+hus! an administrator appointed by a Philippine court can

have 8urisdiction only over the properties of the deceasedlocated in the Philippines

Two :/; Binds of Ad!inistrator

1. Principal or domiciliary administrator – theadministrator in the state where the testator was

domiciled at the moment of his death

2. ncillary administrator – the administrator appointed

in the state where the deceased did not die in as

domiciliary but has properties therein

# .hat law go*erns the ad!inistration of the estate of

the deceased3

0 t is the lex fori – up to the point of distribution.

dministration is not governed by the law which governs

succession! but by the law of the country where the

administration ta#es place! and that is the law of the countryfrom which the administrator derives his authority.

# 'an an ad!inistrator sue or %e sued outside the

2urisdiction of the court fro! which he deri*es his

authority3

0 1. @eneral Rule F (o2. -%ceptions0

a. ,e can sue and be sued if he is appointedanew in said 8urisdiction and "ualifies as such therein

b. ,e may enforce by action a right which is

personal to him and which he is entitled to assert in his own

capacity! even though it is connected with the estate he isadministering

c. ,e can be sued upon a claim which is

sustainable against him! not in his representative! but in his

personal capacity

'onflicts Rules on Ad!inistration

Factual $ituation

.hich 'ourt has

@urisdiction to $ettle the

Estate in 'onflicts

Pro%le!s

- 6ecedent?+estator was

R-S6-(+ of RP and 6-6

in RP

+he court of the place where

he )S+ R-S6-6

/ 6ecedent?+estator was

R-S6-(+ of *R-@(

'ountry

+he court of the place where

his PRP-R+; is located

Ad!inistration of Estate

$u!!ary

1. n administrator appointed in one country has no power

over the property in another country – since his authority is

derived only from the court that appointed him2. Powers of the administrator shall be governed by the law of

the place where he was appointed! such powers include0

a. w?n he sue on behalf of the estate

b. w?n he can dispose the assets of the estate

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa



CONFLICT OF LAWS

# .hat ha""ens after the ad!inistration is co!"leted3

0 6istribution of the remaining assets follows

# .hat law go*erns the distri%ution of the estate3

0 +he (ational law of the decedent rt. 1AB2C/

O4LI=ATION$ AND 'ONTRA'T$

O%ligations & 'ontracts

Definition of a 'ontract fro! the iew"oint of 'onflict

of Laws

'ontract refers to an agreement between two 2/ or more

parties which! in accordance with their intention! gives rise

to an obligation on at least one of them the promisor/! and

creates for the promise a right to claim fulfillment of the promise

The following are NOT included for the "ur"oses of this

'ha"ter

1. greements creating a status such as marriage or

adoption/

2. greements transferring or e%tinguishing rights in rem

such as conveyance of property or assignment of a debt/

Ele!ents of a 'ontract fro! the iew"oint of 'onflict

of Laws

1. For!al or E1trinsic alidity – the e%ternal side of ma#ing a contract! the means of signifying consent! the

e%pression as opposed to the content of legal declarations

2. 'a"acity of the Parties to 'ontract – the power of a

party to bind himself effectively by a contract

3. Essential or Intrinsic alidity – pertains to the nature!content and effects of a contract Performance may be

considered part of intrinsic validity/

.hat Law =o*erns

- =eneral Rule – Lex Loci Contractus the place where t

he

contract was entered into/ under rt. 1:1/ 'ivil 'ode

/ E1ce"tions – hen (+ governed by Lex Loci

Contractus

- hen the contract is entered into before RP

diplomatic officials in a foreign country consular

contract/ under rt. 1:2/ of the 'ivil 'ode – governed by Philippine )aw under principle of

e%territoriality/

/ hen the contract involves )-(+( or

-('$95R('- of PRP-R+; – governed by the Lex !itus or Lex Rei !itae

.hat law will go*ern

- =eneral Rule – governed by the (+() ) of the

contracting parties rt. 1&! 'ivil 'ode/

/ E1ce"tions + when (+ governed by (ational )aw of

the parties

- Insular *5 Fran + governed by Lex Loci

Celebrationis

/ hen the contract involves )-(+( or -('$95R('- of PRP-R+; – governed by the

Lex !itus or Lex Rei !itae rt. 1A1/! 'ivil 'ode/

Intrinsic or Essential alidity #uestions on Intrinsic alidity

1. as there a meeting of the minds consent/

2. as there ade"uate consideration consideration/

3. 6id the obligor perform his obligations under the contract

.hat law will go*ern Intrinsic alidity

- =eneral Rule – governed by the Lex Contractus t

he

proper law of contract/ which is either0

- Lex Loci 5oluntatis the law voluntarily agreed by the

parties/ – the parties -JPR-SS); agreed that such

particular legal system will apply

/ Lex Loci .ntentionis the law intended by the parties/

– there is ( agreement but it can be PR-S$9-6that such law was intended by the parties


/ E1ce"tions

- hile the parties may stipulate on the proper law of

the contract! they cannot stipulate on the 8urisdictionof the courts

/ +he parties cannot abolish compulsory domestic rules

6 +he parties cannot choose a law which contravenes

public policy [%a0istani 'irlines v" &ple, Cadalin v"

%&6', 7an0 of 'merica v" 'merican Realty]


6 =o*erned %y the Lex Loci Contractus + law of the plac

eof the contract if0

- +he parties have not stipulated a different law! or

/ +he law they choose to govern the contract

'((+! on some legal grounds! be applied

The law selected [ Lex Loci .ntentionis] !ay %e I0PLIED

fro! such factors

1. +he law having the most substantial connection withtransaction

2. +he nationality and domicile of the parties

3. +he law most favorable for the effectivity or efficacy of the

contract for it should be presumed that the parties intended to be bound by the agreement

Li!itations and Princi"les in the 'hoice of Law

1. f of 2 possible choices! one law provides certain specificremedies in case of breach! and the other does not F the first

law applies if the contract ma#es mention of said remedies

2. Several laws may be selected! each of which governsdifferent elements of the transaction 5$+ parties cannot select

a law which has ( connection or relationship at all with the

transaction

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa -K



CONFLICT OF LAWS

3. f the law selected should change! it is law! as changed

that would apply! for it is presumed that at the time of contracting! the parties were cogni>ant of the dynamic

"uality of the law

4. f under the law selected! the contract is legal! but in the place of performance! it is illegal! the selected law must

prevail! and the contract should be considered legal

'onflict Rules for $"ecific 'ontracts

Factual

$ituation

Point of 'ontact

E1trinsi

c

'a"acity Intrinsic Others

- Sales and

5arter

Lex !itus Lex !itus Lex !itus

/ )ease of

Property


6 )ease of

Services

Lex Loci

Celebration

is

National

Law

Lex Loci

5oluntatis8

.ntentionis

8 'ontract

of

'arriageof @oods

*i%ed !itus

of 'arrier

*i%ed

!itus of

'arrier

*i%ed

!itus of

'arrier

)iability for

loss!destruction

! or deterioration of

goods in

transitu – )aw

of 6estination

Factual

$ituation

Point of 'ontact

E1trinsic 'a"acityIntrinsic Others

& 'ontract of

gency

Lex Loci

Celebrationis

(ational

)aw of the

Parties

Les Loci

5oluntatis 8

.ntentioni

s

f agency

deals withconveyance

or

encumbranc

e of property – Lex !itus

A Simple)oan or

9utuum

Lex LociCelebrationis

(ational)aw of

the

Parties

Les Loci5oluntatis

8

.ntentioni s

: Commodat um


Factual

$ituation

Point of 'ontact

E1trinsic 'a"acity Intrinsic Others

7 Pledge!

'hattel

9ortgage!R-9! andntichresis

Lex !itus Lex !itus Lex !itus (ote0

+hese are

accessorycontracts.+herefore

if the

principal

contract isdefective!

the

accessory

contract isalso

deemed

defective

@uarantyandSuretyship

Lex LociCelebracioni

s

(ational)aw of the Parties

Les Loci5oluntatis8

.ntentionis

TORT$ AND #?A$I DELI'T$

TORT$

Definition of Tort

A legal wrong co!!itted u"on anothers "erson or

"ro"erty inde"endent of a contract9 which !ay %e either

1. direct invasion of some legal right of the individual2. +he infraction of some public duty by which special

damage accrues to the individual

3. +he violation of some private obligations by which li#e

damages accrues to the individual

Ele!ents of E*ery Tort Action

1. -%istence of a legal duty from defendant to plaintiff

2. 5reach of that duty! and3. 6amage as pro%imate result

# .hat law go*erns lia%ility and da!ages for torts9 in

general3

A The law of the "lace where the tort was co!!itted :le1loci delicti co!!issi;9 for the following reasons

1. +he state where the social disturbance occurred

has the primary duty to redress the wrong andto determine the effects of the in8uryM

2. +he law of said state must be presumed to have

been most foremost in the mind of the parties

concerned! thus they acted with #nowledgeof the resulted conse"uences under the said law

# .hat is the locus elicti 3

A 'onflict often arises in the characteri>ation of the locusdelicti place where the wrong or tort committed/

6 Theories as to where the locus elicti :"lace of

co!!ission; is

1. 'G) )aw +heory – where the act 5-@(

2. '99( )aw +heory – where the tortious act *RS+

5-'9- -**-'+G-

3. +heory of 6r. Rabel – the place which has the 9S+S$5S+(+) or -SS-(+) '((-'+( with the act

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa --



CONFLICT OF LAWS

.hile was negligently cleaning his gun in 'alifornia9

he accidentally shot Y who was in Ne*ada5 Y was rushed

to a hos"ital in Oregon9 where he died5

#.hat is the locus elicti 3

N Torts

A ?nder the

1. 'i*il Law Theory – 'alifornia! becausethe negligent act occurred there2. 'o!!on Law Theory – (evada!

because the in8ury to ; became effective

there

3. Ra%els Theory – 'alifornia! because it hasthe most substantial connection with the tort. ,ad

the gun not been fired by J! there would have been

no in8ury

Issues =o*erned %y the Locus Delicti

1. ?( the act has PR-S'R5-6

2. ?( the parties are the PRP-R parties to the

case

3. ?( the act is considered the PRJ9+-cause of the in8ury

4. ?( '(+R5$+R; (-@)@-('- may

be used as a defense&. ?( 69@-S can be awarded

A. +he 5$R6-( of PR* and the 6-*-(S-S

that may be interposed

@urisdiction

Lia%ility for Foreign Torts !ay %e enforced in RP

"ro*ided1. +he torts is (+ penal in character

2. +he tortious liability will (+ contravene our public policy

3. ur 8udicial machinery is ade"uate for such enforcement

Note 1. @enerally! a suit to recover on a foreign tort is cogni>able

in (; state where 8urisdiction may be ac"uired in over the

person of the defendant since the action for damages in one

in personam/2. +herefore! our courts may validly decide a case on

foreign torts applying the proper lex loci delicti comisi/

when0 a. +he defendant is personally served by thesummons of our courts

b. +he defendant voluntarily appears in court

even without such service

.hat an RP court !ust do when faced with a conflicts

"ro%le! in*ol*ing torts and the le1 fori is in conflict

with the law of the foreign state connected to the "arties

or e*ent 1. scertain and weigh the purpose underlying the tort law

of the forum as applied to the particular case! and

2. -%amine and weigh the interest of the other state

.hen an RP 'ourt !ay a""ly RP internal law :le1 fori;

on TORT$

1. hen the RP has a substantial connection with the

parties or the operative facts! and2. ur internal law on tort embodies a social or economic

policy which will be advanced by its application to the case

.hen an RP 'ourt should a""ly the foreign law

[lex

causae] on TORT$

1. hen the RP has no concern or interest in the application of

its internal! and2. +he foreign state! by virtue of its connection with the parties

or the event! has such an interest

TORT$

$ituation

.hat is the Lex Delicti Co!issi"

- +ort is committed abroad a P$5)'vessel! whether on the high seas or in

foreign territorial waters

) of the *)@

/ +ort is committed abroad a PRG+-

or 9-R',(+ vessel on the high

seas

) of the *)@

$ituation .hat is the Lex Delicti

Co!issi"

- +he +ort concerns property!whether real or personal )e% Situs

/ hen there is a collision

between 2 vessels0

1 *rom the same state or

carry the same flag

)aw of the said state

2 *rom different states buttheir laws on the matter

are identical

Said laws

3 *rom different states

with different laws

+he general maritime law

applied by the forum wherethe case is being tried

'RI0E$

Theories on E1traterritorial 'o!"etence

Theory .hat court has 2urisdiction3

- +erritorial +he court of the state where the crime

was committed

/ (ationality +he court of the state where the criminal

is a national or citi>en or sub8ect

6 Protective +he court of any state whose national

interest may be 8eopardi>ed sub8ect to

certain e%ceptions/

8 Real or -clectic +he court of any state whose penal code

has been transgressed

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa -/



CONFLICT OF LAWS

< $niversal +he court of any state where the criminalis found or which has custody over him

unless e%tradition is possible/

Passive

(ationality

+he court of the state of which the victim

is a citi>en or sub8ect

'ri!es# .hat law will a""ly3 A The Le1 Fori9 because a foreign law cannot be applied

if it is "enal in character

And we know that in all things God works for the

good of those who love him, who have been called

according to his purpose.

(Romans 8:28, !"#

From the lectures of Atty. Melissa Romaa Suare!" #$Maresa -6

3nd exam conflicts final

Documents